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OPINION 



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CONSTITUTIONAL POWER OF THE MILITARY 



TRY AND EXECUTE 



ASSASSINS OF THE PRESIDENT 



By attorney GENERAL JAMES SPEED. 



WASHINGTON: 

GOVERNMENT PRINTING OFFICE. 

1865. 



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OPINION 



CONSTITUTIONAL POWER OF THE MILITARY 



TRY AND EXECUTE 



ASSASSINS OF THE PRESIDENT. 



us. in.>M 



By attorney GENERAL JAMES SPEED. 



WASHINGTON: 

GOVERNIVIENT PRINTING OFFICE. 

1865. 



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rt: J 11909 

Di or a 



OPINION. 



Attorney General's Office, 

Washington, July — , 1865. 

Sir : You ask me whether the persons charged with the offence of having 
assassinated the President can be tried before a military tribunal, or must 
they be tried before a civil court. 

The President was assassinated at a theatre in the city of Washington. 
At the time of the assassination a civil war was flagrant, the city of Wash- 
ington was defended by fortifications regularly and constantly manned, 
the principal police of the city was by federal soldiers, the public offices 
and property in the city were all guarded by soldiers, and the President's 
House and person were or should have been under the guard of soldiers. 
Martial law had been declared in the District of Columbia, but the civil 
courts were open and held their regular sessions, and transacted business 
as in times of peace. 

Such being the facts, the question is one of great importance — impor- 
tant, because it involves the constitutional guarantees thrown about the 
rights of the citizen, and because the security of the army and the govern- 
ment in time of war is involved ; important, as it involves a seeming con- 
flict betwixt the laws of peace and of war. 

Having given the question propounded the patient and earnest considera- 
tion its magnitude and importance require, I will proceed to give the rea- 
sons why 1 am of the opinion that the conspirators not only may but 
ought to be tried by a military tribunal. 

A civil court of the United Statesjs created by a law of Congress un- 
der and according to the Constitution. To the Constitution and the law 
we must look to ascertain how the court is constituted, the limits of its 
jurisdiction, and what its mode of procedure. 

A military tribunal exists under and according to the Constitution in 
time of war. Congress may prescribe how all such tribunals are to be 
constituted, what shall be their jurisdiction and mode of procedure. 
Should Congress fail to create such tribunals, then, under the Constitution, 
they must be constituted according to the laws and usages of civilized war- 
fare. They may take cognizance of such offences ;is the laws of war 
permit; they must proceed according to the customary usages of such tri- 
bunals in time of war, and inflict such punishments as are sanctioned by 
the practice of civilized nations in time of war. In time of peace neither 
Congress nor the military can create any military tribunals, except such as 
are made in pursuance of that clause of the Constitution which gives to 
Congress the power "to make rules for the government of the land and 



naval forces." I do not think that Congress can, in time of war or peace, 
under this clause of the Constitution, create military tribunals for the 
adjudication of offences committed by persons not engaged in, or belonging 
to, such forces. This is a proposition too plain for argument. But it does 
not follow that because such military tribunals cannot be created by Con- 
gress under this clause, that they cannot be created at all. Is there no 
other power conferred by the Constitution upon Congress or the military 
under which such tribunals may be created in time of war? 

That the law of nations constitutes a part of the laws of the land, must 
be admitted. The laws of nations are expressly made laws of the land by 
the Constitution, when it says that " Congress shall have power to define 
and punish piracies and felonies committed on the high seas and offences 
against the laws of nations." To define is to give the limits or precise 
meaning of a word or thing in being ; to make, is to call into being. Con- 
gress has power to define, not to make, the laws of nations ; but Congress 
has the power to make rules for the government of the army and navy. 
From the very face of the Constitution, then, it is evident that the laws of 
nations do constitute a part of the laws of the land. But very soon after 
the organization of the federal government, Mr. Randolph,' then Attorney 
General, said : " The law of nations, although not specifically adopted by 
the Constitution, is essentially a part of the law of the land. Its obligation 
commences and runs with the existence of a nation, subject to modification 
on some points of iudifi'erence." (See opinion Attorney General, vol. 1, 
page 27.) The framers of the Constitution knew that a nation could not 
maintain an honorable place amongst the nations of the world that does 
not regard the great and essential principles of the law of nations as a part 
of the law of the land. Hence Congress may define those laws, but cannot 
abrogate them, or, as Mr. Randolph says, may " modify on some points of 
indifference." 

That the laws of nations constitute a part of the laws of the land is 
established from the face of the Constitution, upon principle and by 
authority. 

But the laws of war constitute much the greater part of the law of na- 
tions. Like the other laws of nations,'they exist and are of binding force 
upon the departments and citizens of the government, though not defined 
by any law of Congress. No one that has ever glanced at the many trea- 
tises that have been published in different ages of the world by great, 
good, and learned men, can fail to know that the laws of war constitute a 
part of the law of nations, and that those laws have been prescribed with 
tolerable accuracy. 

Congress can declare war. When war is declared, it must be, under 
the Constitution, carried on according to the knoAvn laws and usages of 
war amongst civilized nations. Under the power to define those laws, 



Congress caunot abrogate them or authorize their infraction. The Consti- 
tution does not permit this government to prosecute a war as an uncivil- 
ized and barbarous people. 

As Avar is required by the frame-work of our government to be prose- 
cuted according to the known usages of war amongst the civilized nations 
of the earth, it is important to understand what are the obligations, duties, 
and responsibilities imposed by war upon the military. Congress, not having 
defined, as under the Constitution it might have done, the laws of war, we 
must look to the usage of nations to ascertain the powers conferred in war, 
on whom the exercise of such powers devolve, over whom, and to what 
extent do those powers reach, and in how far the citizen and the soldier 
are bound by the legitimate use thereof. 

The power conferred by war is,, of course, adequate to the end to be 
accomplished, and not greater than what is necessary to be accomplished. 
The law of war, like every other code of laws, declares what shall not be 
done, and does not say what may be done. The legitimate use of the 
great power of war, or rather the prohibitions upon the use of that power, 
increase or diminish as the necessity of the case demands. When a oity 
is besieged and hard pressed, the commander may exert an authority over 
the non-combatants which he may not Avhen no enemy is near. 

All wars against a domestic enemy or to repel invasions are prosecuted 
to preserve the government. If the invading force can be overcome by 
the ordinary civil police of a country, it should be done without bringing 
upon the country the terrible scourge of war ; if a commotion or insurrec- 
tion can be put d.;wn by the ordinary process of law, the military should 
not be called out. A defensive foreign war is declared and carried on be- 
cause the civil police is inadequate to repel it ; a civil war is waged because 
the laws cannot be peacefully enforced by the ordinary tribunals of the 
country through civil process and by civil officers. Because of the utter 
inability to keep the peace and maintain order by the customary officers 
and agencies in time of peace, armies are organized and put into the field. 
They are called out and invested with the powers of war to prevent total 
anarchy and to preserve the government. Peace is the normal condition 
of a country, and war abnormal, neither being without law, but each hav- 
ing laws appropriate to the condition of society. The maxim i7itcr arma 
silent leges is never wholly true. The object of war is to bring society out 
of its abnormal condition ; and the laws of war aim to have that done with 
the least possible injury to persons or property. 

Anciently, when two nations were at war, the conqueror had or asserted 
the right to take from his enemy his lif.s liberty, and property : if cither 
was spared, it was as a favor or act of mercy. By the laws of nations, and 
of war as a part thereof, the conqueror was deprived of this right. 

When two governments, foreign to each other, are at war, or when a civil 
war becomes territorial, all of the people of the respective belligerents become 



6 

by the law of nations the enemies of each other. As enemies they cannot hold 
intercourse, but neither can kill or injure the other except under a commis- 
sion from their respective governments. So humanizing have been and are 
the laws of war, that it is a high offence against them to kill an enemy 
without such commission. The laws of war demand that a man shall not 
take human life except under a license from his government ; and under the 
Constitution of the United States no license can be given by any depart- 
ment of the government to take human life in war, except according to the 
law and usages of war. Soldiers regularly in the service have the license 
of the government to deprive men, the active enemies of their government, 
of their liberty and lives ; their commission so to act is as perfect and legal 
as that of a judge to adjudicate, but the soldier must act in obedience to the 
laws of war, as the judge must in obedience to the civil law. A civil judge 
must try criminals in the mode prescribed in the Constitution and the law; 
so, soldiers must kill or capture according to the laws of war. Non-com- 
batants are not to be disturbed or interfered with by the armies of either 
party except in extreme cases. Armies are called out and organized to 
meet and overcome the active, acting public enemies. 

But enemies with which an army has to deal are of two classes : 
1st. Open, active participants in hostilities, as soldiers who wear the 
uniform, move under the flag, and hold the appropriate commission from 
their government. Openly assuming to discharge the duties and meet the 
responsibilities and dangers of soldiers, they are entitled to all belligerent 
rights, and should receive all the courtesies due to soldiers. The true sol- 
dier is proud to acknowledge and respect those rights, and ever cheerfully 
extends those courtesies. 

2d. Secret, but active participants, as spies, brigands, bushwhackers, jay- 
hawkers, war rebels, and assassins. In all wars, and especially in civil 
wars, such secret, active enemies rise up to annoy and attack an army, and 
they must be met and put down by the army. When lawless wretches 
become so impudent and powerful as not to be controlled and governed 
by the ordinary tribunals of a country, armies are called out, and the laws 
of war invoked. Wars never have been and never can be conducted upon 
the principle that an army is but a. posse comitatis of a civil magistrate. 

An army, like all other organized bodies, has a right, and it is its first 
duty, to protect its own existence, and the existence of all its parts, by 
the means and in the mode usual among civilized nations when at war. 
Then the (j[uestion arises, do the laws of war authorize a different mode of 
proceeding and the use of different means against secret active enemies 
from those used against open active enemies ? 

As has been said, the open enemy or soldier in lime of war may be met 
in battle and killed, wounded, or taken prisoner, or so placed by the lawful 
strategy of war as that he is powerless. Unless the law of self-preserva- 
tion absolutely demands it, the life of a wounded enemy or a prisoner must 



be spared. Unless pressed thereto by the extremest necessity, the laws of 
war condemn and punish with great severity harsh or cruel treatment to 
a wounded enemy or a prisoner. 

Certain stipulations and agreements, tacit or express, betwixt the open 
belligerent parties, are permitted by the laws of war, and are held to be of 
very high and sacred character. Such is the tacit understanding, or it 
may be usage, of war, in regard to flags of truce. Flags of truce are re- 
sorted to as a means of saving human life, or alleviating human suffering. 
"When not used with perfidy, the laws of war require that they should be 
respected. The Romans regarded ambassadors betwixt belligerents as 
persons to be treated with consideration and respect. Plutarch, in his Life 
of Caesar, tells us that the barbarians in Gaul having sent some ambassa- 
dors to Caisar, he detained them, charging fraudulent practices, and led his 
army to battle, obtaining a great victory. 

When the senate decreed festivals and sacrifices for the victory, Cato 
declared it to be his opinion that Ctesar ought to be given into the hands 
of the barbarians, that so the guilt which this breach of faith might other- 
wise bring upon the state might be expiated by transferring the curse on 
him who Avas the occasion of it. 

Under the Constitution and laws of the United States, should a com- 
mander be guilty of such a flagrant breach of law as Cato charged upon 
Caesar, he would not be delivered to the enemy, but would be punished 
after a military trial. The many honorable gentlemen who hold commis- 
sions in the army of the United States, and have been deputed to conduct 
war according to the laws of war, would keenly feel it as an insult to their 
profession of arms for any one to say that they could not or would not 
punish a fellow-soldier who was guilty of wanton cruelty to a prisoner, or 
perfidy towards the bearers of a flag of truce. 

The laws of war permit capitulations of surrender and paroles. They 
are agreements betwixt belligerents, and should be scrupulously observed 
and performed. They are contracts wholly unknown to civil tribunals. 
Parties to such contracts must answei' any breaches thereof to the customary 
military tribunals in time of war. If an ofiicer of rank, possessing the 
pride that becomes a soldier and a gentleman, who should capitulate to sur- 
render the forces and property under his command and control, be charged 
with a fraudulent breach of the terms of surrender, the laws of war do not 
permit that he should be punished without a trial, or, if innocent, that he 
shall have no means of wiping out the foul imputation. If a paroled pris- 
oner is charged with a breach of his parole, he may be punished if guilty, 
but not without a trial. He should be tried by a military tribunal consti- 
tuted and proceeding as the laws and usages of war prescribe. 

The law and usage of war contemplate that soldiers have a high sense 
of personal honor. The true soldier is proud to feel and to know that his 
enemy possesses personal honor, and will conform and be obedient to the 



s 

laws of war. In a spirit of justice, and with a wise appreciation of such 
feelings, the laws of war protect the character and honor of an open 
enemy. When by the fortunes of Avar one open enemy is thrown into the 
hands and power of another, and is charged with dishonorable conduct 
and a breach of the laws of war, he must be tried according to the usages 
of war. Justice and fairness say that an open enemy to whom dis- 
honorable conduct is imputed, has a right to demand a trial. If such a 
demand can be rightfully made, surely it cannot be rightfully refused. 
It is to be hoped that the military authorities of this country will never 
refuse such a demand, because there is no act of Congress that authorizes 
it. In time of war the law and usage of war authorize it, and they are a 
part of the law of the land. 

One belligerent may retjuest the other to punish for breaches of the 
laws of war, and, regularly, such a request should be made before retalia- 
tory measures are taken. Whether the laws of war have been infringed 
or not, is of necessity a question to be decided by the laws and usages of 
war, and is cognizable before a military tribunal. When prisoners of war 
conspire to escape or are guilty of a breach of appropriate and necessary 
rules of prison discipline, they may be punished, but not witbout trial. 
The commander who should order every prisoner charged with improper 
conduct to be shot or hung, would be guilty of a high offence against the 
laws of war, and should be punished therefor, after a regular military 
trial. If the culprit should be condemned and executed, the commander 
would be as free from guilt as if the man had been killed in battle. 

It is manifest, from what has been said, that military tribunals exist 
imder and according to the laws and usages of war in the interest of justice 
and mercy. They are established to save human life, and to prevent 
cruelty as far as possible. The commander of an army in time of war has 
the same power to organize military tribunals and execute tbeir judgments 
that he has to set his squadrons in the field and fight battles. His 
authority in each case is from the law and usage of war. 

Having seen that there must be military tribunals to decide qiiestions 
arising in time of war betwixt belligerents who are open and active ene- 
mies, let us next see whether the laws of war do not authorize such 
tribunals to determine the fate of those who are active, but secret, partici- 
pants in the hostilities. 

In Mr. Wheaton's Elements of International Law, he says, "the effect 
of a state of war, lawfully declared to exist, is to place all the subjects of 
each belligerent power in a state of mutual hostility. The usage of na- 
tions has modified this maxim by legalizing such acts of hostility only as 
are committed by those who are authorized b}'- the express or implied com- 
mand of the state ; such are tbe regularly commissioned naval and mili- 
tary forces of tbe nation and all others called out in its defence, or spon- 
taneously defending themselves, in case of necessity, without any express 



9 

autliority for that purpose. Cicero tells us in his oifices, that by the Ro- 
man feudal law no person could lawfully engage in battle with the public 
enemy without being regularly enrolled, and taking the military oath. 
This was a regulation sanctioned both by policy and religion. The hor- 
rors of war would indeed be greatly aggravated, if every individual of the 
belligerent states were allowed to plunder and slay indiscriminately the 
enemy's subjects without being in any manner accountable for his conduct. 
Hence it is that, in land wars, irregular bands of marauders are liable to 
he treated as lawless banditti, not entitled to the protection of tJic mitigated 
usages of tear as practiced by civilized nations.''^ (Wheaton's Elements 
of International Law, page 406, 3d edition.) 

In speaking upon the subject of banditti, Patrick Henry said, in the 
Virginia convention, " the honorable gentleman has given you an elaborate 
account of what he judges tyannical legislation, and an ex post facto law — 
(in the case of Josiah Phillips ;) he has misrepresented the facts. That 
man was not executed by a tyrannical stroke of power ; nor was he a Soc- 
rates ; he was a fugitive murderer, and an outlaw ; a man who com- 
manded an infamous banditti, and at a time when the tear was at the most 
perilous stage he committed the most cruel and shocking barbarities ; he 
was an enemy to the human name. Those who declare war against the 
human race may be struck out of existence as soon as apprehended. He 
was not executed according to those beautiful legal ceremonies which are 
pointed out by the laws in criminal cases. The enormity of his crimes 
did not entitle him to it. I am truly a friend to legal forms and methods, 
but, sir, the occasion warranted the measure. A pirate, an outlaw, or a 
common enemy to all mankind, may be put to death at any time. It is jus- 
fied by the law of nature and nations^ (3d volume Elliott's Debates on 
Federal Constitution, page 140.) 

No reader, not to say student, of the law of nations, can doubt but that 
]Mr. Wheaton and Mr. Henry have fairly stated the laws of war. Let it 
be constantly borne in mind that they are talking of the law in a state of 
war. These banditti that spring up in time of war are respecters of no 
law, human or divine, of peace or of war, are hostes humani generis, and 
may be hunted down like wolves. Thoroughly desperate and perfectly 
lawless, no man can be rec[uired to peril his'life in venturing to take them 
prisoners — as prisoners, no trust can be reposed in them. But they are 
occasionally made prisoners. Being prisoners, what is to be done Avith 
them % If they are public enemies, assuming and exercising the right to 
kill, and are not regularly authorized to do so, they must be apprehended 
and dealt with by the military. No man can doubt the right and duty of 
the military to make prisoners of them, and being public enemies, it is the 
duty of the military to punish them for any infraction of the laws of war. 
But the military cannot ascertain whether they are guilty or not without 
the aid of a military tribunal. 



10 

In all wars, and especially in civil Avars, secret but active enemies are 
almost as numerous as open ones. That fact has contributed to make civil 
wars such scourges to the countries in which they rage. In nearly all for- 
eign wars the contending parties speak different languages, and have dif- 
ferent habits and manners ; but in most civil wars that is not the case; 
hence there is a security in participating secretly in hostilities that in- 
duces many to thus engage. War prosecuted according to the most civ- 
ilized usage is horrible, but its horrors are greatly aggravated by the im- 
memorial habits of plunder, rape, and murder practiced by secret, but 
active participants. Certain laws and usages have been adopted by the 
civilized world in wars between nations that are not of kin to one another, 
for the purpose and to the effect of arresting or softening many of the 
necessary cruel consequences of war. How strongly bomrd are we, then, 
in the midst of a great war, where brother and personal friend are fighting 
against brother and friend, to adopt and be governed by those lav/s and 
usages. 

A public enemy must or should be dealt with in all wars by the same 
laws. The fact that they are public enemies, being the same, they should 
deal with each other according to those laws of Avar that are contemplated 
by the Constitution. Whatever rules have been adopted and practiced 
by the civilized nations of the world in war to soften its bars! mess and 
severity, should be adopted and practiced by us in this Avar. That the 
laws of war authorized commanders to create and establish military com- 
missions, courts, or tribunals, for the trial of offenders against the laws 
of war, whether they be active or secret participants in the hostilities, 
cannot be denied. That the judgments of such tribunals may have been 
sometimes harsh, and sometimes even tyrannical, does not prove that they 
ought not to exist, nor does it proA^e that they are not constituted in the 
interest of justice and mercy. Considering the power that the laAvs of Avar 
give over secret participants in hostilities, such as banditti, guerillas, spies, 
&c., the position of a commander AA^ould be miserable indeed if he could 
not call to his aid the judgments of such tribunals; he Avould become a 
mere butcher of men, without the power to ascertain justice, and there can 
be no mercy where there is no justice. War in its mildest form is horrible ; 
but take away from the contending armies the ability and right to organize 
what is now known as a Bureau of Military Justice, they would soon become 
monster savages, unrestrained by any and all ideas of laAV and justice. 
Surely no lover of mankind, no one that respects law and order, no one 
that has the instinct of justice, or that can be sof tened by mercy, 
would, in time of Avar, take aAvay from the commanders the right to organize 
military tribunals of justice, and especially such tribunals for the pro- 
tection of persons charged or suspected Avith being secret foes and par- 
ticipants in the hostilities. It Avould be a miracle if the records and 
history of this war do not show occasional cases in Avhich those tribu- 



11 

nals have erred; but they will show many, very many cases in which 
human life would have been taken but for the interposition and judg- 
ments of those tribunals. Every student of the laws of war must 
acknowledge that such tribunals exert a kindly and benign influence in 
time of war. Impartial history will record the ftict that the Bureau oF 
Military Justice, regularly organized during this war, has saved humaiv 
life and prevented human suffering. The greatest suffering, patiently 
endured by our soldiers, and the hardest battles gallantly fought during; 
this protracted struggle, are not more creditable to the American character 
than the establishment of this bureau. This people have such an educated 
and profound respect for law and justice — such a love of mercy — that they 
have, in the midst of this greatest of civil wars, systematized and brought 
into regular order tribunals that before this war existed under the law of 
war, but without general rule. To condemn the tribunals that have been 
established under this bureau is to condemn and denounce the war itself, 
or, justifying the war, to insist that it shall be prosecuted according to 
the harshest rules, and without the aid of the laws, usages, and customary 
agencies for mitigating those rules. If such tribunals had not existed be- 
fore, under the laws and usages of war, the American citizen might as 
proudly point to their establishment as to our inimitable and inestimable 
constitutions. It must be constantly borne in mind that such tribunals 
and such a bureau cannot exist except in time of war, and cannot then 
take cognizance of offenders or offences where the civil courts are open, 
except offenders and offences against the laws of war. 

But it is insisted by some, and doubtless with honesty, and with a zeal 
commensurate Avith their honesty, that such military tribunals can have 
no constitutional existence. The argument against their constitutionality 
may be shortly, and I think f;iirly, stated thus : 

Congress alone can establish military or civil judicial tribunals. As 
Congress has not established military tribunals, except such as have been 
created under the articles of war, and which articles are made in pursuance- 
of that clause in the Constitution which gives to Congress the power ta 
make rules for the government of the army and navy, any other tribunal is. 
and must be plainly unconstitutional, and all its acts void. 

This objection thus stated, or stated in any other way, begs the c^uestion^. 
It assumes that Congress alone can establish military judicial tribunals. 
Is that assumption true 1 

We have seen that when war comes, the laws and usages of war come 
also, and that during the war they are a part of the laws of the land. 
Under the Constitution, Congress may define and punish offences against 
those laws, but in defeult of Congress's defining those laws and prescrib- 
ing a punishment for their infraction, and the mode of proceeding to ascer- 
tain whether an offence has been committed, and what punishment is to be- 
inflicted, the army must be governed by the laws and usages of wax as un- 



12 

derstood and practiced by the civilized nations of the world It has been 
abundantly shown that these tribunals are constituted by the army in the 
interest of justice and mercy, and for the purpose and to the effect of miti- 
gating the horrors of war. 

But it may be insisted that though the laws of war, being a part of the 
law of nations, constitute a part of the laws of the land, that those laws 
must be regarded as modified so far and whenever they come iti direct 
conflict with plain constitutional provisions. The; following clauses of the 
Constitution are principally relied upon to show the conflict betwixt the 
laws of war and the Constitution : 

" The trial of all crimes, except in cases of impeachment, shall be by the 
jury; and such trial shall be held in the State where the said crime shall 
have been committed ; but when not committed within any State, the trial 
shall be at such place or places as the Congress mayby law have directed." 
(Art. Ill of the original Constitution, sec. 2.) 

" No person shall be held to answer for a capital or otherwise infamous 
crime unless on a presentment or indictment of a grand jury, except in 
cases arising in the land or naval forces, or in the militia when in actual 
service, in time of war or public danger ; nor shall any person be subject 
for the same offence to be twice 2)ut in jeopardy of life or limb, nor shall 
be compelled, in any criminal case, to be witness against himself, nor be 
deprived of life, liberty, or property, without due process of law ; nor shall 
private property be taken for public use without just compensation." — 
(Amendments to the Constitution, Art. V.) 

" In all criminal prosecutions, the accused shall enjoy the right to a speedy 
and public trial by an impartial jury of the State and district wherein 
the crime shall have been committed, which district shall have been previ- 
ously ascertained by law, and be informed of the nature and cause of the 
accusation ; to be confronted with the witnesses against him, to have com- 
pulsory process for obtaining witnesses in his favor ; and to have the assist- 
ance of counsel for his defence." — (Art. VI of the amendments to the Con- 
stitution.) 

These provisions of the Constitution are intended to fling around the 
life, liberty, and property of a citizen all the guarantees of a jury trial. 
These constitutional guarantees cannot be estimated too highly, or pro- 
tected too sacredly. The reader of history knows that for many weary 
ages the people suffered for the want of them ; it would not only be stu- 
pidity, but madness in us not to preserve them. No man has a deeper 
conviction of their value or a more sincere desire to preserve and perpetuate 
them than I have. 

Nevertheless, these exalted and sacred provisions of the Constitution 
must not be read alone and by themselves, but must be read and taken in 
connexion Avith other provisions. The Constitution was framed by great 
men, men of learning and large experience, and it is a wonderful monu- 



13 

ment of tlieir wisdom. Well versed iu tlie history of the world, they 
knew that the nation for which they wei'e forming a government would, 
unless all history was false, have wars, foreign and domestic. Hence the 
government framed by them is clothed with the power to make and carry 
on war. As has been shown, when war comes, the laws of war come 
with it. Infractions of the laws of nations are not denominated crimes, 
but offences. Hence the expression in the Constitution that " Congress 
shall have power to define and punish * * offences against the law of 
nations." Many of the offences against the law of nations for which a 
man may, by the laws of war, lose his life, his liberty, or his property, 
are not crhnes. It is an offence against the law of nations to break a 
lawful blockade, and for which a forfeiture of the property is the penalty, 
and yet the running a blockade has never been regarded a crime ; to hold 
communication or intercourse with the enem.y is a high offence against the 
laws of war, and for which those laws prescribe punishment, and yet it is 
not a crime ; to act as spy is an offence against the laws of war, and the 
punishment for which in all ages has been death, and yet it is not a 
crime ; to violate a flag of truce is an offence against the laws of war, and 
yet not a crime of which a civil court can take cognizance ; to unite with 
banditti, jayhawkers, guerillas, or any other unauthorized marauders is a 
high offence against the laws of war ; the offence is complete Avhen the 
band is organized or joined. The atrocities committed by such a band do 
not constitute the offence, but make the reasons, and sufficient reasons 
they are, why such banditti are denounced by the laws of war. Some of 
the offences against the laws of war are crimes, and some not. Because 
they are crimes they do not cease to be offences against those laws ; nor 
because they are not crimes or misdemeanors do they fail to be offences 
against the laws of war. Murder is a crime, and the murderer as such 
must be proceeded against in the form and manner prescribed in the Con- 
stitution ; in committing the murder an offence may also have been com- 
mitted against the laws of war ; for that offence he must answer to the 
laws of war, and the tribunals legalized by that law. 

There is, then, an apparent but no real conflict in the constitutional pro- 
visions. Offences against the laws of war must be dealt with and punished 
under the Constitution as the laws of war, they being a part of the law of 
nations direct ; crimes must be dealt with and punished as the Constitution, 
and laws made in pursuance thereof, may direct. 

Congress has not undertaken to define the code of war nor to punish 
offences against it. In the case of a spy. Congress has undertaken to say 
who shall be deemed a spy, and how he shall be punished. But every 
lawyer knows that a spy was a well known offender under the laws of war, 
and that under and according to those laws he could have been tried and 
punished without an act of Congress. This is admitted by the act of Con- 



14 

gress, Avlicn it says that lie shall suffer death "according to the law and 
usages of war." The act is simply declaratory of the law. 

Tliat portion of the Constitution Avhich declares that " no person shall be 
deprived of his life, liberty, or property without due process of law," has 
such direct reference to, and connexion with, trials for crime or criminal 
prosecutions that comment upon it would seem to be unnecessary. Trials for 
offences against the laws of war are not embraced or intended to be embraced 
in those provisions. If this is not so, then every man that kills another in 
battle is a murderer, for he deprived a "person of life without that due 
process of law" contemplated by this provision; every man who holds 
another as a prisoner of war is liable for false imprisonment, as he does so 
without that due process of law contemplated by this provision ; every sol- 
dier that marches across a field in battle array is liable to an action of tres- 
pass, because he does it without that same due process. The argument that 
flings around offenders against the laws of war these guarantees of the 
Constitution would convict all the soldiers of our army of murder; no pris- 
oners could be taken and held ; the army could not move. The absurd 
consequences that would of necessity flow from such an argument show 
that it cannot be the true construction — it cannot be what was intended by 
the framers of the instrument. One of the prime motives for the Union 
and a federal government was to confer the powers of war. If any provis- 
ions of the Constitution are so in conflict with the power to carry on war 
as to destroy and make it valueless, then the instrument, instead of being a 
great and wise one, is a miserable failure, a folo de sc. 

If a man should sue out his writ of habeas coy-j^us, and the return shows 
that he belonged to the army or navy, and was held to be tried for some 
offence against the rules and articles of war, the Avrit should be dismissed 
and the party remanded to answer to the charges. So, in time of war, if a 
man should sue out a writ of habeas corpus, and it is made appear that he 
is in the hands of the military as a prisoner of war, the writ should be dis- 
missed and the prisoner remanded to be disposed of as the laws and usages 
of war require. If the prisoner be a regular unoffending soldier of the op- 
posing party to the war, he should be treated with all the courtesy and 
kindness consistent with his safe custody ; if he has offended against the 
laws of war, he should have such trial and be punished as the laws of war 
require. A spy, though a prisoner of war, may be tried, condemned, and 
executed by a military tribunal without a breach of the Constitution. A 
bushwhacker, a jayhawker, a bandit, a war rebel, an assassin, being public 
enemies, may be tried, condemned, and executed as offenders against the 
laws of .war. The soldier that would fsiil to try a spy or bandit after 
his capture would be as derelict in duty as if he were to ffiil to capture ; 
he is as much bound to try and to execute, if guilty, as he is to arrest ; the 
same law that makes it his duty to pursue and kill or capture makes it his 
duty to try according to the usages of war. The judge of a civil court is not 



15 

more strongly bound under the Constitution and the law to try a criminal 
than is the military to try an offender against the laws of war. 

The fact that the civil courts are open does not affect the right of the 
military tribunal to hold as a prisoner and to try. The civil courts have 
no more right to prevent the military, in time of war, from trying an of- 
fender against the laws of war than they have a right to interfere with 
and prevent a battle. A battle may be lawfully fought in the very view 
and presence of a court ; so a spy, a bandit, or other offender against the 
law of war may be tried, and tried lawfully, when and where the civil 
courts are open and transacting the usual business. 

The laws of war authorize human life to be taken without legal process, 
or that legal process contemplated by those provisions in the Constitution 
that are relied upon to show that military judicial tribunals are unconstitu- 
tional. Wars should be prosecuted justly as well as bravely. One enemy 
in the power of another, whether he be an open or a secret one, should not 
be punished or executed without trial. If the question be one concerning 
the laws of war, he should be tried by those engaged in the war — they and 
they only are his peers. The military must decide whether he is or not 
an active participant in the hostilities. If he is an active participant in 
the hostilities, it is the duty of the military to take him a prisoner without 
warrant or other judicial process, and dispose of him as the laws of war 
direct. 

It is curious to see one and the same mind justify the killing of thousands 
in battle because it is done according to the laws of war, and yet condemn- 
ing that same law when, out of regard for justice and with the hope of 
saving life, it orders a military trial before the enemy are killed. The love 
of law, of justice, and the wish to save life and suffering, should impel all 
good men in time of war to uphold and sustain the existence and action of 
such tribunals. The object of such tribunals is obviously intended to save 
life, and when their jurisdiction is confined to offences against the laws of 
war, that is their effect. They prevent indiscriminate slaughter; they pre- 
vent men from being punished or killed upon mere suspicion. 

The law of nations, which is the result of the experience and wisdom of 
ages, has decided that jayhawkers, banditti, &c., are offenders against the 
laws of nature, and of war, and as such amenable to the military. Our 
Constitution has made those laws a part of the law of the land. Obedience 
to the Constitution and the law, then, requires that the military should do 
their whole duty ; they must not only meet and fight the enemies of the 
country in open battle, but they must kill or take the secret enemies of the 
country, and try and execute them according to the laws of war. The 
civil tribunals of the country cannot rightfully interfere with the military 
in the performance of their high, arduous, and perilous, but lawful duties. 
That Booth and his associates were secret active public enemies, no mind 
that contemplates the facts can doubt. The exclamation used by him when 



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16 ^ 

lie escaped from the box on to the stage, after lie had fired the fatal shot, (^^ 
sic semper tyrannis, and bis dying message, " say to my mother that I died {^ 

for my country," show that he was not an assassin from private malice, 
but that he acted as a public foe. Such a deed is expressly laid down by 
Vattel, in his work on the law of nations, as an offence against the laws of 
war, and a great crime. " I give, then, the name of assassination to a 
treacherous murder, whether the perpetrators of the deed be the subjects 
of the party whom we cause to be assassinated or of our own sovereign, or 
that it be executed by any other emissary introducing himself as a suppli- 
ant, a refugee, or a deserter, or, in fine, as a stranger." (Vattel, 339.) 

Neither the civil nor the military department of the government should 
regard itself as Aviser and better than the Constitution and the laws that 
exist xinder or are made in pursuance thereof. Each department should, in 
7^ peace and in war, confining itself to its own proper sphere of action, 

diligently. and fearlessly perform its legitimate functions, and in the mode 
prescribed by the Constitution and the law. Such obedience to and ob- 
servance of law will maintain peace when it exists, and will soonest relieve 
the country from the abnormal state of war. 

My conclusion, therefore, is, that if the persons who are charged with 
the assassination of the President committed the deed as public enemies, as 
I believe they did, and whether they did or not is a question to be decided 
by the tribunal before which they are tried, they not only can, but ought 
to be tried before a military tribunal. If the persons charged have offended 
against the laws of war, it would be as palpably wrong for the military to 
hand them over to the civil courts, as it would be wrong in a civil court to 
convict a man of murder who had, in time of war, killed another in battle. 
I am, sir, most respectfully, your obedient servant, 

JAMES SPEED, Attorney General. 

To the President. 



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